Wednesday, April 22, 2015

New Guidance for Federal Employees – Blogger Beware!

There is much value in the federal government’s use of social media – for example, we follow the Department of the Interior’s Instagram account that features gorgeous visuals of the nation’s parks and provides interesting snippets of these close-by-yet-foreign places. Yet, there is considerable confusion over precisely when a federal employee’s online activity may cross over to misconduct. Many agencies have inundated the United States Office of Government Ethics (OGE) regarding this exact concern, and on April 9, 2015, the OGE issued newGuidance for executive branch employees’ personal use of social media. For the most part, the Guidance offers commonsense advice, and includes a list of factors to consider when determining that an expressed opinion constitutes misconduct:

Whether the employee states that he or she is acting on behalf of the government;

Whether the employee refers to his or her connection to the government as support for the employee’s statements;

Whether the employee prominently features his or her agency’s name, seal, uniform or similar items on the employee’s social media account or in connection with specific social media activities;

Whether the employee refers to his or her government employment, title, or position in areas other than those designated for biographical information;

Whether the employee holds a highly visible position in the Government, such as a senior or political position, or is authorized to speak for the Government as part of the employee’s official duties;

Whether other circumstances would lead a reasonable person to conclude that the government sanctions or endorses the employees’ social media activities; or

Whether other circumstances would lead a reasonable person to conclude that the government does not sanction or endorse the employees’ social media activities.

Thus, while a federal employee may have personal social media accounts, she must take care to keep her federal identity at a distance. Although the Department of the Interior may post about its official activities, an Interior employee may not post her personal opinions on her own social media platforms in a way that creates an “impermissible appearance of government sanction or endorsement.”The OGE recommends that agencies adopt their own social media policies if they have not already done so. In the meantime, they reassure the federal workplace that more guidance will be forthcoming. One subject matter worth addressing is how agencies’ social media policies would impact a federal whistleblower’s ability to make disclosures on social media. Future guidance would need to make clear that such agency regulations cannot be used to circumvent a whistleblower’s right to make protected disclosures – as the Supreme Court held in Department of Homeland Security v. MacLean, 135 S. Ct. 913, 190 L. Ed. 2d 771 (2015), the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by agency regulations. Another subject matter the OGE ought to address is how the Fair Labor Relations Act is implicated by agencies’ social media policies. One can easily imagine a scenario where a worker complains about a supervisor’s unfair treatment of a co-worker – perhaps in a series of public tweets. The OGE will need to make clear that whatever policies an agency decides to adopt will need to respect the worker’s right to engage in protected labor practices. Of course, as the OGE recognizes, this is only the tip of the iceberg, and social media is evolving at a faster rate than policies and laws. Should you find yourself in murky waters, please give us a call. This blog was written by Nina Ren.